Samuels v. Commonwealth

9 Ky. Op. 177, 1876 Ky. LEXIS 384

• Court: Court of Appeals of Kentucky
• Decided: October 17, 1876
• Status: Published

Opinion

Opinion by

Judge Pryor:

The objection made to the petition by counsel for the appellants is purely technical. It is alleged that Samuels failed to discharge his duties as auditor of the commonwealth, and the office held by him being that of auditor of public accounts it is maintained that the breach of his official bond was improperly assigned.

The word “auditor,” in the sense in which it is generally used, means one who keeps or is authorized to examine accounts, and an auditor, of a state is the auditor of public accounts. Much of the testimony in the case, however, was incompetent as against the sureties. The declarations of Samuels made long after the alleged breach of duty occurred should have been excluded. The appellee is seeking to make the sureties liable with Samuels, and in order to fix this responsibility the accounts constituting the breach of his bond must be shown, and not what Samuels said in reference to his action. The surety is bound for his action. The surety is bound for the actual conduct of the principal, and his declarations made during the transaction of the business, for the performance of which the sureties are responsible, would be competent as against the surety, but statements made after the alleged breach by the principal as to what he had done in the attempt to discharge the duties of his office, or in violating his official obligation, should not be permitted to go to the jury.

Therefore the testimony of Brown as to the conversations with Samuels after the transaction took place, was -incompetent. Cassitys v. Robinson, 8 B. Mon. 279; Commonwealth for Russell v. Brassfield, 7 B. Mon. 447; Greenleaf, 187. Nor was the statement by Brown that he had arrived at the conclusion, in part from an examination of the books in the auditor’s office competent as against Samuels. He was not a clerk in the auditor’s office and is not presumed to know what transpired in that office. The books themselves, or certified copies of the entries, must be produced in order to show what the books contain. The clerk in whose custody the books are, or whose duty it was to make the entries, would be competent to state that no such entry or credit was in it. This should be done with the book or a certified copy of the accounts before him. The objection to the instructions arising from the admission of this incompetent testimony it is not necessary to' notice thereon. The insolvency of Brown cannot affect Samuel’s liability, and the proof on the subject should have been excluded. For the errors indicated the judgment is reversed and cause remanded with directions to' award the appellants a new trial and for further proceedings consistent with the opinion.

W. P. D. Bush, for appellants. Moss, for appellee. Judge Cofer not sitting.